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Thursday, July 31, 2014

DWI Driver cannot be sentenced an 2nd time school zone offender unless he had a prior school zone conviction.

DWI Driver cannot be sentenced an 2nd time school zone offender unless he had a prior school zone conviction.State v. Reiner, 180 N.J. 307 (2004)
HELD: Subsection (a)[regular DWI] and (g)[school zone DWI of N.J.S.A. 39:4-50 are separate offenses; therefore, in order to be sentenced as a second-time offender under subsection (g), there must be another prior school zone conviction against the defendant under that subsection. Therefore, the statute must be construed strictly against the State and in favor of Reiner. Under the circumstances here, the more favorable result for Reiner would be to construe subsection (g) as a separate offense that requires other subsection (g) convictions for repeat status to attach. In respect of the subsection (g) offense, Reiner is a first-time offender. He is a repeat offender only under subsection (a).

Supreme
Court of New Jersey.

STATE of New Jersey,
Plaintiff-Respondent, v. Philip REINER, Defendant-Appellant.

Decided: July 7, 2004

In this appeal we are called on to determine whether
the heightened penalties contained in N.J.S.A. 39:4-50(g) (subsection (g)),
applicable upon conviction of a second offense of driving while intoxicated
(DWI) within 1,000 feet of school property, may be imposed when a defendant's
first DWI offense did not occur within 1,000 feet of school property. The
predicate “first offense” here involved a conviction and sentence under
N.J.S.A. 39:4-50(a) (subsection (a)). A divided Appellate Division held that
the subsection (g) second-offender penalties applied in the foregoing
circumstances. State v. Reiner, 363 N.J.Super. 167, 182, 832 A.2d 328 (2003).
We now reverse and remand.

I.

A full factual recitation appears in the decision of
the Appellate Division. Id. at 169-72, 832 A.2d 328. We restate only the
basic facts necessary for our disposition.

Prior to the events giving rise to this appeal,
defendant, Phillip Reiner, had been convicted of DWI under subsection (a). On
October 10, 2000, the Newton Police Department charged defendant with: (I) DWI
contrary to N.J.S.A. 39:4-50(a); (II) refusal to submit to a breathalyzer test
contrary to N.J.S.A. 39:4-50.2; (III) driving the wrong way on a one-way
street contrary to N.J.S.A. 39:4-85.1; (IV) failure to stop before turning
right on red contrary to N.J.S.A. 39:4-115; and (V) failure to maintain a lane
contrary to N.J.S.A. 39:4-88.1 At a case management
conference on October 31, 2000, defendant was advised that the State would be
charging him also with DWI within 1,000 feet of school property contrary to
subsection (g), as well as with refusal to take a breathalyzer after having
been stopped within 1,000 feet of school property contrary to N.J.S.A.
39:4-50.4 (collectively, the “school zone charges”).

The municipal court rejected a pre-trial contention by
defendant that he did not receive adequate notice of the school zone charges
against him and three days of trial ensued. The court found defendant guilty
of DWI within 1,000 feet of school property and guilty of all other charges,
except refusal to take a breathalyzer after having been stopped within 1,000
feet of school property. The municipal court sentenced defendant consistent
with the penalties for a second-time offender under subsection (g),
specifically imposing: ninety-six hours in jail; seventy-five days at the
Sheriff's Labor Assistance Program (SLAP) for having driven intoxicated in a
school zone when children were present; a four year suspension of driver's
license; sixty days of community service; and forty-eight hours at the
Intoxicated Driver Resource Center. The court also imposed a $1,500 fine, and
other penalties and fees.

The Law Division, on de novo review, similarly held
that defendant had adequate notice that he was being charged with DWI in a
school zone, and affirmed the municipal court's determination that the
second-offense penalties of subsection (g) applied to defendant's current DWI
conviction. The court also affirmed the sentence imposed by the municipal
court for defendant's DWI conviction.2

A divided Appellate Division affirmed. Reiner, supra,
363 N.J.Super. at 182, 832 A.2d 328. The majority determined that defendant
received adequate notice that he was being charged under subsection (g), id. at
174, 832 A.2d 328, and held that defendant should be sentenced as a second-time
offender pursuant to subsection (g), even though he had no prior convictions
for DWI within a school zone. Id. at 175-82, 832 A.2d 328. There was a
dissent in respect of defendant's treatment as a second-time offender under
subsection (g). The dissent found N.J.S.A. 39:4-50 to be vague in respect of
whether two convictions under subsection (g) were necessary for a defendant to
be sentenced as a repeat offender under the terms of that subsection. Id. at
183-84, 832 A.2d 328 (Fuentes, J.A.D., dissenting). The dissent reconciled
the ambiguity by concluding that subsections (a) and (g) are separate offenses
with separate sentencing schemes. Id. at 182-85, 832 A.2d 328 (Fuentes,
J.A.D., dissenting).

Defendant appealed based on the dissent below. R.
2:2-1(a)(2). We also granted defendant's petition for certification limited
to the question whether defendant had adequate notice of the school zone
charges. 178 N.J. 451, 841 A.2d 89 (2004).

II.

A.

Like all matters that require interpretation of a
statute, our goal of implementing the Legislature's intent begins with the text
of the statute. If the meaning of the text is clear and unambiguous on its
face, we enforce that meaning. State v. Brannon, 178 N.J. 500, 505-06, 842
A.2d 148 (2004); State v. Thomas, 166 N.J. 560, 567, 767 A.2d 459 (2001). If
the language admits to more than one reasonable interpretation, we may look to
sources outside the language to ascertain the Legislature's intent. Brannon,
supra, 178 N.J. at 507, 842 A.2d 148; State v. Pena, 178 N.J. 297, 307, 839
A.2d 870 (2004) (quoting Thomas, supra, 166 N.J. at 567, 767 A.2d 459). When
extrinsic sources cannot clarify the meaning of ambiguous language, we employ
the canon of statutory construction that counsels courts to construe
ambiguities in penal statutes 3 in favor of defendant.
State v. Livingston, 172 N.J. 209, 218, 797 A.2d 153 (2002); State v.
Valentin, 105 N.J. 14, 18, 519 A.2d 322 (1987). Thus, we turn first to the
operative text.

N.J.S.A. 39:4-50 is entitled “Driving while
intoxicated.” Two subsections concern us. Subsection (a), which states
generally the elements of and punishments for DWI, provides, in relevant part:

Except as provided in subsection (g) of this section,
a person who operates a motor vehicle while under the influence of intoxicating
liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor
vehicle with a blood alcohol concentration of 0.10% or more ․ shall be subject: (1) For
the first offense, to a fine of not less than $250 nor more than $400.00 and a
period of detainment [pursuant to the Intoxicated Driver Resource Centers] a
term of imprisonment of not more than 30 days and [suspension of driving
privileges] for a period of not less than six months nor more than one year ․ (2) For a second violation,
a person shall be subject to a fine of not less than $500.00 nor more than
$1,000.00, and ․ community
service for a period of 30 days ․ and ․ imprisonment for a term of not less than 48
consecutive hours ․ nor more
than 90 days, and [suspension of driving privileges] for a period of two years.

[N.J.S.A. 39:4-50(a).] 4

Subsection (g), added in 1999, punishes DWI committed
within a school zone:

(g) When a violation of this section occurs while:

(1) on any school property used for school purposes
which is owned by or leased to any elementary or secondary school or school
board, or within 1,000 feet of such school property;

(2) driving through a school crossing as defined in
R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the
school crossing as such; or

(3) driving through a school crossing as defined in
R.S.39:1-1 knowing that juveniles are present if the municipality has not
designated the school crossing as such by ordinance or resolution, the
convicted person shall: for a first offense, be fined not less than $500 or
more than $800, be imprisoned for not more than 60 days and have his license to
operate a motor vehicle suspended for a period of not less than one year or
more than two years; for a second offense, be fined not less than $1,000 or
more than $2,000, perform community service for a period of 60 days, be
imprisoned for not less than 96 consecutive hours, which shall not be suspended
or served on probation, nor more than 180 days, except that the court may lower
such term for each day, not exceeding 90 days, served performing community
service in such form and on such terms as the court shall deem appropriate
under the circumstances and have his license to operate a motor vehicle
suspended for a period of not less than four years․

[N.J.S.A. 39:4-50(g).] 5

The parties and opinions below differ in respect of
the interrelationship between the foregoing subsections. The State and
Appellate Division majority believe that subsections (a) and (g) are textually
linked. They find that inclusion of the phrase “[e]xcept as provided in
subsection (g)” in subsection (a) demonstrates that subsection (g) contains
heightened punishments for DWI while in a school zone that are sensible only if
subsection (g) is viewed as a sentencing enhancer. Stated differently, (g)
builds on the more general elements of (a). In addition, the proponents of
that view contend that the language, “[w]hen a violation of this section
occurs,” (emphasis added), refers to N.J.S.A. 39:4-50 as a whole, and not to
subsection (g) in particular. The State considers the use of the word
“section” to exemplify the “tongue-and-groove” approach of the subsections, and
the integrated nature of N.J.S.A. 39:4-50 in general.

The contrary view espoused by defendant and the
dissent below emphasizes that the use of separate subsections for subsections
(a) and (g) evidences a legislative intent to treat them as distinct offenses
and that the introductory phrase “[e]xcept as provided in subsection (g)”
promotes the notion of separation, rather than integration, of the subsections.
Reiner, supra, 363 N.J.Super. at 183, 832 A.2d 328 (Fuentes, J.A.D.,
dissenting). Further, defendant claims that ambiguity arises from two other
considerations: (1) subsection (g) does not specify whether the fact that a
DWI offense occurred in a school zone is an element, which must be proved by
the State beyond a reasonable doubt, or a sentencing consideration; and (2)
subsection (g) does not state expressly that its penalties apply irrespective
of whether any of a defendant's prior DWI convictions were for a school zone
offense. In addition, we note that subsection (g) has an express internal
reference indicating that the provision sets forth a separate offense, i.e.,
subsection (g) refers to “a prosecution under paragraph (1) of this subsection”
when describing the form of map that might be used to establish the school
zones within a community.

We mention lastly defendant's argument concerning the
disparate penalties occasioned by the State's interpretation of subsections (a)
and (g). Under the State's interpretation, a person first convicted under
subsection (g) and then subsection (a) would receive aggregate penalties less
grave than a person, such as defendant, convicted first under subsection (a) and
subsequently under subsection (g),6 despite
engaging in virtually the same conduct-with one DWI offense taking place within
a school zone, and one outside a school zone. The Appellate Division
determined that “there is a rational basis for the purportedly disparate
sentences, in that when the second offense occurs in a school zone, it can be
viewed as an escalating violation.” Reiner, supra, 363 N.J.Super. at 176, 832
A.2d 328. However, a person whose first DWI offense occurred in a school zone
has shown the same propensity to flout motor vehicle laws, and in an egregious
way-by endangering the lives of children. Punishing both such persons equally
would be a rational result as well.

Reasonable arguments have been advanced for both
interpretations of the relationship between subsection (g) and subsection (a). N.J.S.A.
39:4-50 is not a model of clarity. We find that the reasonableness of each of
the results described above supports a conclusion that the statute's meaning is
not free from doubt. Accordingly, we must turn to extrinsic sources for
assistance. Brannon, supra, 178 N.J. at 507, 842 A.2d 148; Pena, supra, 178
N.J. at 307, 839 A.2d 870.

B.

The Legislature added subsection (g), known as
“Filomena's Law,” to N.J.S.A. 39:4-50 in response to the tragic death of
Filomena Coppola, a school crossing guard who was struck by a drunk driver
while protecting children from the oncoming vehicle. Reiner, supra, 363
N.J.Super. at 175, 832 A.2d 328. Filomena's Law initially was proposed in two
bills, Senate No. 854 (March 5, 1998) and Assembly No. 1821 (March 16, 1998),
with identical provisions calling for increased penalties for DWI within 1,000
feet of any school property. Those provisions would have added the following
language to subsection (a):

When a violation of this section occurs while on or
within 1,000 feet of any school property used for school purposes which is
owned by or leased to any elementary or secondary school or school board, the
fine, period of community service, term of imprisonment and period of license
forfeiture imposed upon the convicted person shall be double that which would
otherwise be imposed under paragraphs (1), (2) or (3) of this subsection.

[N.J. Sen. 854, 208th Leg. (March 5, 1998).] 7

By adding the above paragraph to the end of what was
then N.J.S.A. 39:4-50(a)(3), the proposed bills explicitly provided that DWI in
a school zone would not be treated as a separate offense, but would merely double
automatically the penalties imposed for DWI. Both the language and structure of
the proposed bills evinced an intention to treat DWI in a school zone as
grounds for enhanced penalties.

Identical Senate and Assembly Statements accompanying
those proposed bills described them as doubling the penalties when the DWI was
committed in a school zone:

The bill would double the penalties imposed on a
person convicted of driving a motor vehicle under the influence of alcohol or
drugs while on or within 1,000 feet of any school property used for school
purposes which is owned by or leased to any elementary or secondary school or
school board.

Under current law, the penalties for a first drunk
driving offense include a fine of $250 to $400, possible imprisonment for up to
30 days and loss of a driver's license for six months to one year. Under the
bill, the penalties for a first offense of drunk driving while on or within
1,000 feet of a school property would be a fine of $500 to $800, possible
imprisonment for up to 60 days and loss of a driver's license for up to two
years. The penalties for second, third and subsequent drunk driving offenses
committed while on or within 1,000 feet of school property also would be
doubled.

However, neither of the proposed bills received the
Legislature's approval. Instead, the Legislature enacted and the Governor
signed into law Senate Substitute for Senate No. 854. L. 1999, c. 185 (the
Substitute). The Substitute expanded the definition of a school zone and
included school crossings, whether or not they fall within 1,000 feet of a
school. Id. at § 4. The change concerning school crossings in particular was
consistent with the impetus for the law, namely, the death of Ms. Coppola.

The Statement accompanying the Substitute explained
the revision as follows:

This substitute creates stiff new penalties for drunk
driving and other serious traffic offenses if committed while: 1) on or within
1,000 feet of school property used for school purposes which is owned by or
leased to any elementary or secondary school or school board; 2) driving
through a school crossing if the municipality, by ordinance or resolution, has
designated the school crossing as such; or 3) driving through a school
crossing knowing that juveniles are present if the municipality has not
designated the school crossing as such by ordinance or resolution․

Under the substitute, the penalties for a first
offense of drunk driving while on or within 1,000 feet of school property or
while driving through designated school crossings or school crossings when
children are present are a fine of between $500 and $800, a term of
imprisonment of 60 days and a period of license suspension of one to two years.
For a second offense, the penalties are a fine of $1,000 to $2000 [sic],
community service of 60 days, a term of imprisonment of 96 hours to 180 days
and license suspension for a period of not less than four years. For a third
offense under the substitute, the penalties are a fine of $2,000, imprisonment
for 180 days and license suspension of 20 years.

Notably, the Substitute moved the school zone
provisions into a new, separate subsection (g), and revised subsection (a) to
begin “[e]xcept as provided in subsection (g).” L. 1999, c. 185, § 4 (N.J.S.A.
39:4-50(g)). The Statement accompanying the Substitute does not address that
structural change. Statement to Substitute. However, consistent with the
changes made to the proposed bills by the Substitute, the Statement
accompanying the Substitute describes the substance of the penalties for first,
second and subsequent DWI school zone offenses and does not simply state that
the ordinary DWI penalties will be doubled. Ibid. In addition, we note that the
Statement's reference to “the penalties for a first offense of drunk driving
while on or within 1,000 feet of school property,” suggests a legislative view
that subsection (g) was to be an offense in and of itself. Ibid.

Those textual and structural changes-adding a separate
subsection (g) for school zone offense and redrafting the new subsection to
omit the automatic “doubling” language-support the interpretation advanced by
the dissent below and by defendant. Further, the Statement accompanying the Substitute
more persuasively supports interpreting subsection (g) as creating a separate
offense, rather than enhancing the penalties for DWI offenses in general.
Whereas the bills as originally proposed would have unambiguously doubled the
penalties for any DWI offense occurring in a school zone, irrespective of the
number of prior school zone offenses by the defendant, the altered language of
Substitute does not support that interpretation.

Finally, we note that a more recent amendment to
N.J.S.A. 39:4-50 sheds some light on whether subsections (a) and (g) should be
treated as separate offenses, or the same offense but with enhanced penalties
for school zone offenses. In 2001, the Legislature added to N.J.S.A. 39:4-50
a subsection (h), which states: “A court also may order a person convicted
pursuant to subsection a. of this section, to participate in a supervised
visitation program as either a condition of probation or a form of community
service, giving preference to those who were under the age of 21 at the time
of the offense.” L. 2001, c. 12, § 1 (N.J.S.A. 39:4-50(h)) (emphasis added).
The phrasing of subsection (h) suggests that subsections (a) and (g) are
separate offenses, and that persons are convicted “pursuant to” one
“subsection” or the other, and not the “section,” N.J.S.A. 39:4-50, generally.

III.

Examination of the legislative history, and
consideration of the possible results attending the differing interpretations
to be given to the statute, leads to the conclusion that those extrinsic aids
to statutory interpretation do not answer the question whether defendant should
be sentenced as a second-time offender under subsection (g). When the text of
a statute and extrinsic aids do not enlighten us satisfactorily concerning the
Legislature's intent, our obligation is to construe the statute strictly,
against the State and in favor of the defendant. See Livingston, supra, 172
N.J. at 223, 797 A.2d 153 (observing that Court's holding was “consonant with
the rule of strict construction of penal statutes”); Valentin, supra, 105 N.J.
at 18-23, 23, 519 A.2d 322 (analyzing statutory text and legislative history; holding
that statute under construction was “sufficiently ambiguous to preclude its
application to th[at] defendant in th[at] context without a clarifying
amendment”).

Under the circumstances presented here, the more
favorable result for defendant would be to construe section (g) as a separate
offense that requires other subsection (g) convictions for repeat status to
attach. We so hold. Our construction allows defendant to be charged with
and convicted of violating both subsection (a) and subsection (g) as separate
offenses. In respect of the subsection (g) conviction, defendant is a
first-time offender. He is a second offender only under subsection (a)
because he previously had been convicted of a subsection (a) offense.9 As explained by the majority below, defendant's conviction under subsection
(a) would merge into his conviction under subsection (g), Reiner, supra, 363 N.J.Super.
at 177, 832 A.2d 328 (citing N.J.S.A. 2C:1-8a(1), -8a(4)), because the offenses
would “differ only in that [subsection (a) ] is defined to prohibit a
designated kind of conduct generally,” N.J.S.A. 2C:1-8a(4), i.e., DWI in
general, and subsection (g) is designed “to prohibit a specific instance of
that conduct,” i.e., DWI in a school zone. Ibid.

We note the anomalous sentencing that would result if,
on remand, the court were limited to sentencing defendant as a first-time
offender under subsection (g), which is the offense that survives our
traditional merger analysis. Subsection (g) carries lesser penalties for
defendant's first-time offender status than those to which defendant would be
subjected as a consequence of being a second-time offender under subsection (a)
for the same DWI incident. Unlike a first-time-subsection (g) offense, a
second-time-subsection (a) offense carries with it mandatory community service
and ignition interlock, as well as the potential for a larger fine, more jail
time, and a fixed license suspension equal to the longest suspension that may
be imposed on a first-time subsection (g) offender. Because we understand the
Legislature to have intended to impose increasingly enhanced penalties for
repeat DWI offenders, we construe and interpret N.J.S.A. 39:4-50 to permit
sentencing defendant in accordance with the highest penalties that apply to
him. Cf. State v. Dillihay, 127 N.J. 42, 54-55, 601 A.2d 1149 (1992) (merging
lesser school zone drug offense with greater non-school zone drug offense, but
retaining for sentencing purposes school zone offense's mandatory parole
ineligibility period). Thus, the trial court should sentence defendant in
accordance with the heightened penalties that apply as a consequence of being a
second-time offender under subsection (a). We believe that that application
fulfills the legislative intent with regard to the punishment of repeat DWI
offenders.

IV.

Finally, we reject defendant's contention that he did
not receive adequate notice that the State would be pursuing school zone
charges against him-namely, that his DWI offense occurred within a school
zone-substantially for the reasons set forth in the majority opinion of the
Appellate Division below. Reiner, supra, 363 N.J.Super. at 174, 832 A.2d 328.
As noted by the majority, the police report provided to defendant long before
his trial noted that the offense for which defendant was charged occurred within
a school zone and, thus, that defendant would be subject to prosecution under
subsection (g) and N.J.S.A. 39:4-50.4. Ibid. Defendant was advised three weeks
after his arrest and two weeks before his first court appearance that the State
would be pursuing school zone charges. Further, defendant's trial did not
begin until nearly one year and four months after he was advised of the school
zone charges. Under those circumstances, defendant's contention that he did not
have adequate notice of the school zone charges is without merit. Cf. H.E.S.
v. J.C.S., 175 N.J. 309, 324, 815 A.2d 405 (2003) (finding due process
violation where defendant received domestic violence complaint against him only
one day prior to return date and defendant's request for adjournment was
denied).

V.

For the reasons stated above, we reverse the judgment
of the Appellate Division. We remand to the Law Division for resentencing of
defendant in accordance with the instructions contained in this opinion.

FOOTNOTES

1. We
note that the summons issued for the N.J.S.A. 39:4-50 offense did not specify
subsection (a) expressly. That is the obvious inference, however, in that
defendant was served simultaneously with a summons for violation of N.J.S.A.
39:4-50.2, which is a non-school zone offense.

2. The
Law Division correctly merged defendant's convictions for driving the wrong way
on a one-way street, failure to stop before turning on red, and failure to
maintain a lane into defendant's DWI conviction. Reiner, supra, 363
N.J.Super. at 170, 832 A.2d 328.

4. The
version of N.J.S.A. 39:4-50(a) quoted in text is the version that was in effect
at the time of defendant's arrest. The Legislature since has amended the
provision.

5. Both
subsections (a) and (g) impose penalties for third-time and subsequent DWI
offenders. Because defendant is only a second-time offender, those
third-time-offender (and subsequent-offender) penalties are not addressed
further.

6. Assuming
a blood alcohol level of greater than 0.10%, the first person in the
hypothetical, who committed the subsection (g) violation first, would be
subject to fines of $1,000 to $1,800 and license suspension of three to fours
years, along with other penalties. The second person, who committed the
subsection (g) violation second, would be subject to fines of $1,300 to $2,500
and license suspension of four years and seven months to five years, along with
other penalties. N.J.S.A. 39:4-50(a), -50(g).

9. In
the event that our decision runs counter to the original intentions of the
sponsors of subsection (g), a possibility we readily acknowledge, then a
corrective amendment will right the course. However, we must glean the
legislative intent from the language of the statute actually enacted, informed
by extrinsic sources, some of which support the State's interpretation and some
of which do not. In those circumstances, we are constrained to interpret the
ambiguous language of the statute against the State and in favor of defendant
in respect of the issue of defendant's second-offender status under subsection
(g).